Steve Barnes: When the defense throws Hail Marys

Tuesday

Apr 25, 2017 at 8:40 AMApr 25, 2017 at 8:41 AM

What do you read, my lord?

Words, words, words.

— Hamlet

When came the time to decide whether an Arkansas inmate would die, when the melancholy choice was the judge’s to make, his call and his alone had he so chosen, he said: no, not now, not tonight; let’s talk this over, think this thing through — though not in those words.

The judge, of Italian rather than Danish ancestry, is a justice of the U.S. Supreme Court. Not one of those bleeding hearts appointed by Democratic presidents: Ginsburg and Breyer (Clinton), Sotomayor and Kagan (Obama). Or Kennedy, a Reagan appointee who frequently infuriates the post-Reagan Right.

No, on Monday night the justice who pulled the plug (or, the syringe) was Samuel Alito, not the Court’s most ideologically austere member, but close. Alito, a George W. Bush selection, helped craft the Court’s opinion upholding Kentucky’s method of capital punishment — lethal injection.

While it was within Alito’s authority to single-handedly void the document that was keeping Don Davis alive, the justice balked: he shared with his eight colleagues the paper of the case. Time was of the essence, and clearly there was too little of it for Alito & Co. to process the facts, the arguments. So from Washington, D.C. to Grady, Arkansas, to the Cummins Unit and its death chamber came 35 words: “The application to vacate the stay of execution of sentence of death entered by the Arkansas Supreme Court on April 17, 2017, presented to Justice Alito and by him referred to the Court is denied.”

Multiply those three-dozen words by 2,000,000, in briefs and oral arguments before courts of law, and one might come close to the aggregate in the quarter-century since the sentencing of Davis and seven others who were to die at Cummins beginning mid-month. Those are the words that matter in a nation of laws; those uttered in the political class, rather less so.

It is not supposed to be easy for a state to kill a man, even a Don Davis, who uses words such as “coldblooded” and “evil” in describing the murder he committed 25 years ago in Benton County. Two days before Davis was to feel the needle and amid appeals on multiple fronts, Governor Hutchinson expressed sympathy for the victim’s kin but, choosing his words carefully, as attorneys are schooled to do, he cautioned that “the last minute court reviews are all part of the difficult process of death penalty cases.”

Mr. Hutchinson grew steadily more subjective after execution day’s dawn; the process, it seems, was becoming too difficult, coincident with the success Davis’s lawyers began to find. In the first of three press releases on April 17, the Governor asserted that “last minute court rulings have changed the course of justice.” Surfacing later that day, after yet another ruling for Davis, was Mr. Hutchinson’s “frustration in the continued delayed justice.” Finally, after Alito’s words arrived, Mr. Hutchinson vowed anew to resist “efforts to block justice for the victims’ families.”

However purposeful has been Mr. Hutchinson in scheduling the executions and lamenting any postponements, his resolve pales against the fervor with which Arkansas’s chief legal officer has honored her obligation to pursue the inmates to the gurney. What the Governor found frustrating, Leslie Rutledge decried as “heartbreaking.” Such zeal.

To be fair, more than one judge in the long appellate journey of the condemned has expressed annoyance with the Hail Mary passes tossed at the courts by defense attorneys. “Dilatory,” “manipulative” and “inapplicable” are, too, words, words, words.

Naturally, almost invariably, there are disagreements even among jurists as to what constitutes justice, of which due process is a constitutional component. So outraged was Associate Justice Shawn Womack of the Arkansas Supreme Court by the stay it granted Davis that he termed it “inconceivable” and the panel’s majority derelict. (Womack, with fewer than four months at the state’s highest tribunal, evidently is a quick study: three years ago, while a circuit judge at Mountain Home, he cited his inexperience with criminal law in recusing from a case involving attempted murder.)

Still, justice is not what the executive branch suggests, nor the legislative endorses, but what the judicial is charged with determining. And on more than one occasion it has arrived at justice after reviewing last minute filings followed by last minute rulings that certainly delayed justice but did not block it — not for victims, families or defendants — and in some cases indeed changed the course of justice, even to exonerating the innocent. To respect the process does no disrespect to the victims nor their relatives, and it provides no honor, none, to the guilty.

Alito, contemplative and conservative, would concur. His first vote after joining the U.S. Supreme Court, eleven years ago, was in a capital case from Missouri, which sought to lift a stay of execution. He needed but one word: No.

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